Today in History (1986): U.S. Attorney General Edwin Meese announces that profits from covert weapons sales to Iran were illegally diverted to the anti-communist Contra rebels in Nicaragua. This makes inviting Oliver North and John Poindexter to Fed Soc functions rather awkward, at least until their convictions are overturned.

November 30, 2006

Maybe I Need More Cowbells

While Scaliaphilia may be a common phenomenon, I seem to be plagued by Thomasitis. I've come to despise speaking up in class...by anyone. Let the professor make her points. Apparently I'm so hooked on caffeine, that I put aside reading (one week from finals) to watch a History Channel program on coffee. Did you know it was allegedly discovered by an Ethiopian shephard whose goats went nuts after grazing on it? (Think crazed, red-eyed farm animals craving Homer's magically radioactive crop of Tomacco).

But while we're on the topic, I think the list of "new words" nominated by the Orlando Weekly to be included in next year's OED can include a few more justices. Off the top of my head

Alitistic - Lacking the mental capacity to recognize one's job duties (such as opening the door during a conference as the junior justice).

I'm not hopped up on caffeine enough to think of anything for Breyer. Brey wine? The driest of dry wines. Meh.

November 29, 2006

Did My Parents Leave Me Behind?

The No Child Left Behind education law has led to tremendous controversy among educators, and outright defiance by states that resent the federal government's intrusion into a traditionally local matter, particularly when it came in the form of an unfunded mandate that penalized underperformers by the withdrawal of federal funds. Carrots might have been accepted, but sticks are rarely popular (and may yet give rise to a constitutional challenge based on South Dakota v. Dole, if the DOE actually starts enforcing national standards instead of letting states set their own benchmarks of proficiency). The NYTimes magazine recently had an article that attempted an in-depth look at what researchers and teachers are doing to close the performance gap between black and white, poor and middle-class students. In the focus on the traditional racial divide, however, I wonder whether the researchers may have missed a useful resource: Asian and Eastern European immigrants' parenting, which has created enough overachieving students to constitute a cliche. These parents usually are like the middle-class parents in having at least a high school education and frequently more than that, as higher-than-average level of skills enables them to get work visas to the U.S. Yet the childrearing style described as typical of the low-income parent sounds a lot more like what I experienced growing up than does that of the middle-class parent:

The parents in these families engaged their children in conversations as equals, treating them like apprentice adults and encouraging them to ask questions, challenge assumptions and negotiate rules. They planned and scheduled countless activities to enhance their children’s development -- piano lessons, soccer games, trips to the museum.
The working-class and poor families Lareau studied did things differently. In fact, they raised their children the way most parents, even middle-class parents, did a generation or two ago. They allowed their children much more freedom to fill in their afternoons and weekends as they chose -- playing outside with cousins, inventing games, riding bikes with friends -- but much less freedom to talk back, question authority or haggle over rules and consequences. Children were instructed to defer to adults and treat them with respect.

Or is that I was raised "a generation or two ago" in sociology time? or that my parents were unsuccessful in their attempts to squelch the backtalk impulse? Considering that my parents had to blackmail me into literacy and that I revenged myself by becoming such a bibliomaniac that they had to ground me from reading by 7th grade, I may have just been an uncommonly bad kid.

Regardless, the charter school experiment is one area of education reform of which I tentatively approve, at least as it's being conducted in New York City, and I'm hoping to make legal assistance to the Harlem and Bronx charters -- one of which is profiled in the article -- a pro bono project for local law students who are looking for conservative-friendly opportunities. I couldn't get into Teach for America, but maybe I can help its alumni. And Yale's: "In Toll’s own career, in fact, the goal of achieving equality came first, and the tool of education came later. When she was at Yale Law School, her plan was to become a civil rights lawyer, but she concluded that she could have more of an impact on the nation’s inequities by founding a charter school."

November 27, 2006

A tale of two truths

Today I read two different stories that had a common theme; legal theory and "the truth." Since it isn't often that I get to discuss one of my favorite topics, (that being the definition of truth), I figured I'd at least put up a little post about the strange reality of law.

In one story I read about "the intangible right of honest services" which is seen by many to hamstring politicians because nobody knows what 'honest services' means. (For example, can President Bush be brought up on charges for claiming to be a conservative and then spending so much federal money?) In the other story I found that we still have federal and state laws that forbid alcoholic beverage producers from promoting the benefits of their products regardless of the truth of the statements. (For example, a doctor can tell you it is good for your heart to drink a glass of wine a day, but if the wine industry does it they can get in some very serious trouble.)

In one scenario we have a statute that seems to potentially make it a crime to change political positions. (It isn't technically a crime to do so, but there is certainly some worry that it could be litigated.) On the other hand, you have statutes that make it a crime to tell the truth. I can't see how either of these things is good for our country.

I don't really have anything more to say about this topic. Both laws are facially absurd. It seems to me that they both resemble 'hate laws' in that they don't serve any real legal purpose. (Some may argue that hate laws do serve the purpose of strengthening the punishment for heinous crimes, and if it increases potential sentences they are right.) Just like the crimes codified as hate laws are already crimes, so too is it already illegal to defraud people, (most people brought up on charges for violating 'honest services' could easily be brought up on charges of fraud or even RICO), and so too is it already illegal to make inaccurate statement about the health benefits of alcohol. (In fact, it is illegal to make any statement about your product that is untrue.)

Laws this broad are not only unconstitutional, they are bad public policy.

No Pot, But Free Abortions

Volokh Conspirators Orin Kerr and Ilya Somin suggest that Raich makes it impossible to use the commerce clause's limitations to attack legislation like the ban on dilation & extraction abortions; even free abortions provided intrastate are blocked by that precedent because they use items that flow in interstate commerce. However, one should be cautious in claiming that Raich clearly precludes an interstate commerce clause-based declaration that the "partial birth" abortion ban is unconstitutional.

While the instruments for abortions flow in interstate commerce, the notion that abortions themselves, like marijuana, could enter interstate commerce is obviously silly. A purveyor of marijuana can guarantee that the person to whom he supplies pot is the end-user only if he watches her smoke up the whole batch in front of him, which I doubt is what Raich's suppliers did. When I visited San Francisco in early 2001, the back pages of alternative weeklies abounded with advertisements for medical marijuana, which gave me some sympathy to the idea that pot supposedly sold for medicinal purposes might well become recreational. Realistically, a thief could break into Raich's home, steal her supply and sell it across state lines. A purveyor of abortion procedures, on the other hand, can supply only the consumer in front of him; he can operate on only one patient at a time (although RU-486 would be more comparable to medical marijuana).

This distinction between instruments and end-products or services seems to me a meaningful one.

The government can regulate my harvesting wheat or cannabis because it affects interstate commerce in those products. But given that forceps, curettes and other tools of abortion are themselves legal, and it is only their employment in the dilation & extraction abortion procedure that the federal government has outlawed, free intrastate "partial birth" abortions may plausibly be excepted from the general PBA ban. If one follows the majority's rationale in Raich that the possibility of homegrown medical marijuana's slipping into interstate commerce is what allows the federal government to prevent it from being distributed, then a surgical procedure cannot be similarly construed as possibly slipping into interstate commerce. Physicians can require applicants for free abortions to produce proof of in-state residence; the less regulated pot market probably will not do so with its consumers.

To look back at Wickard, while physicians' giving away free abortions certainly would affect the market for abortion, that doesn't seem to be what Congress is doing with the PBA ban. There's no hint that the legislation is meant to keep the number or price of abortions at a certain level, nor does it seem particularly likely to do so. If later-term abortions become more dangerous (as forcing all women to get standard dilation & evacuation, which increases the chance of uterine perforation and infection, is likely to make such abortions*), this may incentivize women who fear fetal deformities or damage to their own health to abort earlier rather than waiting to find out whether their worries are justified.

The PBA ban is more similar to the provision struck down by Lopez; it bans an activity that is assumed to use articles passing in interstate commerce, regardless of whether the activity itself may "substantially affect" interstate commerce. Of course, unlike bringing guns to school or raping women, performing abortions normally is done for a fee and therefore is economic activity; again, free abortions probably do affect the general market for abortion. And the Court said that even Lopez's noneconomic activity could have been regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." However, the Gun-Free School Zones Act of 1990 was not a regulation of economic activity.

Similarly, no part of H. R. 760 treats abortion as an economic activity; all of its attention is on the immorality of "partial birth" abortions, their negative effects on women's health and their "confusion" of the physician's proper role. It allows the husbands of adult women, and the parents of minors, who choose to have dilation & extraction to collect civil damages from physicians. (Which may in effect cause doctors providing such abortions to be doing them for free even if they charge for them.) Unlike the pot buyer and consumer, "a woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.’’

Based on the fact that abortion normally is done for doctors' profit, I can see how the "partial birth" abortion ban properly falls within Congress's interstate commerce clause powers as limned by Raich and Wickard. On the other hand, I wouldn't be wholly surprised if someone on the Supreme Court found Lopez/ Morrison rationale to limit federal legislation that lacks economically oriented purpose.

To understand this issue requires understanding the peculiar and questionable character of these statutes. They do not protect the lives of fetuses either directly or by seeking to persuade a woman to reconsider her decision to seek an abortion. For the statutes do not forbid the destruction of any class of fetuses, but merely criminalize a method of abortion--they thus have less to recommend them than the antiabortion statutes invalidated in Roe v. Wade, 410 U.S. 113 (1973). If any fetal lives are saved by these statutes, it will only be by scaring physicians away from performing any late-term abortions, an effect particularly likely in Wisconsin, whose statute imposes a punishment of life imprisonment for its violation. ...
The statutes do not seek to protect the lives or health of pregnant women, or of anybody else, as by confining the performance of abortions to licensed physicians, as in Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam), or to facilities equipped to deal with emergencies that may arise in the course of an abortion, particularly a late-term one. A legislature can ban quacks from practicing medicine without making an exception for those quacks (and no doubt there are some) who are abler than the worst physicians. Any general health regulation is likely to hurt a few people. But as banning "partial birth" abortions is not intended to improve the health of women (or anyone, for that matter), it cannot be defended as a health regulation. ...
The statutes do not outlaw a particularly cruel or painful or horrifying mode of abortion. This can be shown with the aid of a simple example. Suppose that the fetus is hydrocephalic, so that its head is too large to pass through the cervix. If the physician performing the abortion crushes the fetus's skull in the uterus, killing the fetus while the fetus is still entirely within the uterus, he is not guilty of violating either of the statutes before us. But if before crushing the fetus's skull the physician turns the fetus around so that its feet are protruding into the vagina, he has committed a felony. In both cases, the fetus is killed by the crushing of its head in the uterus. (The crushing is necessary to enable the fetus to be removed through the birth canal without making the woman go into labor.) From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally
privileged. ...
The wave of "partial birth" abortion statutes that broke over the nation after a description of the D & X procedure was publicized--see Martin Haskell, "Dilation and Extraction for Late Second Trimester Abortion" (1992), reprinted in 139 Cong. Rec. E1092, 1993 WL 135664 (Apr. 28, 1993), and in The Partial-Birth Abortion Ban Act of 1995, Hearing before the S. Comm. on the Judiciary, 104th Cong., 1st Sess. 5 (Nov. 17, 1995)--does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based -- as is implicit in Judge Manion's defense of the laws-- on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus's feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late- term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational.

November 26, 2006

(Not) Leavin' This Court Alive

In response to conservatives' hopefulchatter that Justice Stevens is unwell and will retire from the Supreme Court while Bush is still in office:

Stayed the same
When other names will change
Everyday
Not giving my place away
Another Court
Run by this kid John Roberts
My back stays here
No matter how it hurts

Chorus: I’m a Justice
On the high bench I ride
Not leavin’ this Court alive
Leavin’ this Court alive

Ginsburg can sleep [1]
But I’m always awake
The lawyers ’fore me
Better hear the liberal take
Lived through Prohibition [2]
I’ll be eighty seven soon
And I’ll keep writing dissents
Long as I have to

None of my clerks
Are part of cert memo pools
I write first drafts
Not those twenty-something fools
Been here since Ford
And I’m standing tall
I’ve seen three thousand cases [3]
And I’ve rocked them all

Chorus: I’m a Justice
On the high bench I ride
Not leavin’ this Court alive
I’m a Justice
I’ve got good genes on my side
Not leavin’ this Court alive
Leavin’ this Court alive

[2] Though generally favoring an expansive commerce clause, as in his majority opinion in the Gonzales v. Raich medical marijuana decision, Stevens made an exception in his Granholm v. Heald dissent, arguing that interstate wine shipping was different: “Today many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products. That was definitely not the view of the generations that made policy in 1919 when the Eighteenth Amendment was ratified or in 1933 when it was repealed by the Twenty-first Amendment. … The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference.”

[3] Three thousand is an overestimation, despite Stevens’s nearly 32 years as a Justice, because the Court takes fewer than 100 cases a year and justices sometimes miss oral argument or recuse themselves.

Talking About My Generation

I seem to be a rare fan of Dahlia Lithwick among blawggers, and I agree with her that there's no reason to be particularly upset by a sex-sells advertisement in a legal publication. I would further point out that although the woman in the ad would be a better role model for our daughters were she wearing a judicial robe and carrying a gavel, she's still exhibiting initiative and aggression -- two qualities that working women often are faulted if they don't have, and then again are faulted if they have in excess. You go, half-nekkid woman jumping man in suit!

However, I'm a little puzzled by a sentence in Lithwick's concluding paragraph: "This reflexive opposition to using anything intimate or even overtly sexual in a legal magazine may be upsetting because women lawyers can't see themselves in that ad; this is the same overreaction that leads some women at law school to believe that sex is for drunk people and that male lawyers only have sex with other women."

Like Lithwick, "I consider myself a feminist and I am always one to fetch a pail of water in the service of gender equity," but she and I may part ways on our estimates of our female classmates. Or maybe it's a generational thing, or East Coast versus West Coast? Hurrah, New Yorkers finally get to be more sexually liberated than Bay Area types! Whatever the source of our differences, I've never gotten the impression from any of my female classmates that they look down on sex in general, or that the unmarried feel like they couldn't get laid among their male colleagues if they wanted to. But with so many debt-free i-bankers about, why would one want to?

Maybe I'm just riding the third wave, but the stereotype of the feminist who thinks sex is bad is pretty much dead at the law schools nowadays. I feel safe in saying this considering I've been a member of a self-described feminist law journal for three years, and am almost embarrassed by what a lipsticky, man-welcoming group we are, publishing more articles about sex toys and education than about the notion that hetero sex is inherently coercive. Andrea Dworkin may be rolling in her grave.

Lithwick does young feminists no favors by assuming that the president of the Women's Bar Association is somehow representative of female law students. What the president, a grandmother of five, is far more likely representing is an understandably kneejerk reaction among a generation of women whose male colleagues did not get sexual harassment training -- to say the least -- and who therefore have an immediate, negative reaction to interjecting sex into their workplace that they do not have to sex in venues like Cosmo. (Does anyone still read Cosmo other than guys who are wondering what is that spot that is supposed to drive them wild?)

I consider that an overreaction, but that's from my, and to some degree Lithwick's, post-Anita Hill vantage*. It's a lot easier to bare your legs in the Law Revue show when you know that your male classmates respect your intellectual abilities; sexy ads in a professional publication are more acceptable when it's so understood in your office that any gender reversal of the action in the advertisement -- i.e., a man's grabbing a woman by her necklace and pulling her toward him -- will be punished that you don't even think about it on a daily basis.

In short, there may be some women whose experience of sex and suits tended to be of the unwelcome variety, and for whom therefore the advertisement appears to be gender discrimination because it may depict a sexual interaction in the workplace. However, for the most part these are women who graduated law school some time ago and who bore the brunt of bringing gender equity to the profession; not merely carrying the occasional pail of water, but going through the daily drip-drop wearing down of having their presence in the office and courts questioned. Those of us enjoying the fruit of their efforts should understand where they're coming from, without feeling obliged to carry the same sentiments past their expiration date, nor having those sentiments falsely ascribed to us.

* Having been thoroughly saturated in political correctness, I managed to be slightly offended by the depiction of African Americans and Latinos in my anti-harassment training video, while also never experiencing any sexual harassment from teachers, colleagues nor bosses in two years of work and several more of higher education. I may be unusual in finding PC simply a modern form of etiquette that accepts the heterogeneity of contemporary America and recognizing that people might be sensitive about rude remarks regarding their race, religion, gender, etc. in the same it always was recognized that people might be sensitive about rude remarks regarding their mother and an outhouse.

UPDATE: I also fault Lithwick's column for inspiring a truly stupid post at LewRockwell.com; that Ryan W. McMaken regards the law as merely a modern convenience on par with HVAC makes him an odd duck even in the paleo-conservative crowd, which tends to have a high regard for law as it existed in 1870 and a distrust of adding anything to it unless doing so will reduce the power of government.

November 23, 2006

Protect Intellectual Property from Its Owner

So I know about the line of cases regarding physical property that winds up with Kelo, and I heard about Monsanto's application of the Takings Clause to trade secrets, but there's one more thing I need the government's power under the 5th Amendment to do for me: stop the owners of pop song lyrics from selling said lyrics to contemporary country musicians. Rascal Flatts' version of "Life Is a Highway" was bad enough -- the N'Sync of Nashville claiming "We won't hesitate/ To break down the garden gate" is a sugary insult to Tom Cochrane's rough-toned original. Then I heard Lonestar sing "Walking in Memphis."

There are people who could redo "Life Is a Highway"; Chris LeDoux's take wasn't bad. But no one should mess with Marc Cohn's "Walking in Memphis," especially not the squeaky clean country stars of today. I could have believed Johnny Cash or even Willie Nelson responding to the question, “Tell me are you a Christian, child?” with “Ma’am, I am tonight.” Is there any night the current members of Lonestar wouldn't respond to that query with "Yes'm, and twice on Sundays"? (I know Cher also covered "Walking in Memphis," but she had the decency to release it only to foreigners. Maybe that's like the reverse of the many government regulations that limit companies' ability to license intellectual property to foreign nations -- it may not be safe for China to know the secrets of the Playstation 2, and only Europe can safely hear Cher.)

Surely the United States has a duty to protect its citizens from the desecration of their audio memories. If I see someone burn a flag, that only reinforces my own commitment to honoring our nation. If I hear a gelled Justin Timberlake wannabe with a steel guitar singing one of the biggest hits of my adolescence, I never can feel the same way about the song again. Maybe the songwriters needed the money generated by licensing out their lyrics, but for less than a tax dollar a day, each of us can preserve our recollection of the early 1990s. New London is trying to kick people out of their homes for the sake of an increased tax base; can't the federal government give just compensation for the sake of a VH1 series?

November 22, 2006

Today / 11.25.06

Today in History (1986): U.S. Attorney General Edwin Meese announces that profits from covert weapons sales to Iran were illegally diverted to the anti-communist Contra rebels in Nicaragua. This makes inviting Oliver North and John Poindexter to Fed Soc functions rather awkward, at least until their convictions are overturned.

November 21, 2006

Not Back to the '60s, But Back to the '20s!

I heart theseposts about the absurd position held by anti-choice Republicans that while overturning Roe v. Wade would "return the issue to the states," they also will vote for as much federal legislation to restrict abortion as possible. In the interests of rescuing McCain, though, maybe what he meant was that when the Court overturned Roe, it also would live out the rest of Thomas's dream and get rid of the commerce clause jurisprudence that makes such federal legislation regarding abortion possible. Or maybe not, given that McCain also supports a Constitutional amendment to ban abortion.

I know that some Republicans may object that of course the United States never would pass such a ban, so it's OK for McCain to support it to shore up his standing the social conservative base, but surely we occasionally can take a politician seriously. That the United States hasn't passed a Constitutional ban on flag burning doesn't keep me from despising Hillary Clinton's willingness to run right on/ over the First Amendment.

And in case McCain apologists once again mention that McCain "said that if his daughter wanted an abortion, he would leave the decision up to her," I note that the fact that McCain wouldn't dream of applying general bans on abortion to people in his social circles doesn't make him a pro-choicer; it makes him a Republican. John McCain's daughter won't have a problem getting an abortion whether Roe is good law or not, but a lot of other women won't be so lucky. Social conservatism for thee-but-not-for-me is pretty much what social conservatism means in this country.

Post-Grad Human Rights Opportunity: Crowley Program in International Human Rights
Fordham Law School, New York, NY

Overview/Qualifications: The Crowley Program in International Human Rights is dedicated to promoting human rights scholarship and advocacy at Fordham Law School and around the work. The program offers an annual two-week fact-finding mission abroad, a human rights lecture and brown bag series, a summer internship program, and student research projects. Fordham Law School seeks a law school graduate to administer the Crowley Program as part of a 14-month fellowship. The fellowship will begin in mid-August 2007 and end in October 2008.
Duties: The Crowley Fellow will serve as a member of the adjunct faculty and will teach a seminar in human rights in preparation for the annual fact-finding mission. He or she will also plan all substantive and logistical aspects of the fact-finding mission; participate in the mission; write and publish a post-mission report; run the year-round lecture series for the program; advise students; and coordinate with the human rights community.
To apply: Submit a statement of interest including a detailed description of your international human rights experience, teaching/mentoring/advising experience, language skills, and how the fellowship will advance your professional goals; a resume/CV; a law school transcript; and at least two references, in one complete application package, to:
2007-2008 Fellowship Crowley Program in International Human Rights
Fordham University School of Law
33 West 60th Street, 2nd Floor, Room 224B
New York, NY 10023
Deadline: January 15, 2007
Salary: $50,000 annually

* I was told at a law firm interview that in the new edition, Pratchett asks readers to stop buying him banana daiquiris.

** Notice that the linked page spells it "program" in the browser title, but "programme" in the text of the webpage. I suppose India alone means that more people on the planet speak British than American, but I suspect we will dominate eventually.

November 19, 2006

Moratorium on Ninth Circuit Mockery

OK, I really can't put a stop to people's picking on the Ninth Circuit, and I'll even concede that some of it is meritorious. But there is one particular complaint that's absurd, and allofthebloggerswhopraised George Will's rant against Reinhardt seem to have missed that. As part of his introductory paragraph on what losers the liberal 9th Circuit judges are, Will notes that 22 percent of the cases heard by Supreme Court last term were appeals from the 9th. Will fails to mention, however, that the 9th Circuit contained nearly 20% of the U.S. population as of the 2000 census, and probably has an even larger percentage today given trends on the West Coast and in Arizona.

November 16, 2006

Conservatives, Here's Your Newest Analogy

Jumping off the explication of the Bush base's connection between Dred Scott and Roe (both instances of judicial activism in which entities of uncertain status -- slaves/ African Americans in the former, fetuses in the latter -- were stripped of possible rights), I see a fresh way to invoke the infamous case. With same-sex adoptive parents afraid to travel to Oklahoma for fear that their daughter will no longer be regarded as their daughter, the Adoption Invalidation Law can be proudly viewed by conservatives as the abolitionist legislation of our time. Just as plaintiff Scott saw the Missouri Compromise as freeing him from slavery once he stepped into a territory that prohibited slavery, Focus on the Family and its ilk can use Oklahoma's law to free children adopted by homosexuals from the oppressive shackles of their gay parents' love and care. There's even the historical fillip of the quasi master-slave relationship between fathers and children.

Sure, someone might say that taking a 4-year-old from the only parents she has known would violate the family law requirement of acting in the best interests of the child, but you always can point those naysayers to the social science research quoted by FoF spokeswoman Carrie Earll. "A core part of the battle over marriage rights is 'whether same-sex parenting is best for children. The social science research says children do best with a married mother and father,' she said. 'We shouldn't tinker with what we know works.'" (I admit never having seen any social science research indicating significantly better outcomes for children with a married mother and father versus two same-sex parents with the same legal protections, but I assume FoF follows these things better than I. Therefore the harm requirement of Troxel v. Granville easily is met.)

Besides, "best interests of the child" is merely a common law standard and can be superseded by legislation that declares some statewide priority to be higher than a given judge's view of what's best for an individual child. As far as I know, minors do not have a Constitutional right to "best interests" determinations, so no matter how much an adopted child may need to have her homosexual parent recognized so he can, say, direct her medical care, the Adoption Invalidation Law bars him from doing so. And hey, the Romer-haters always can hope that Kennedy has seen the light and that Oklahoma's law will be upheld, thus overturning the precedent that otherwise invalidates a statute singling out homosexuals for adverse treatment.

November 15, 2006

More Than a Magistrate

Continuing the announcements, although this judge had to get Senate confirmation 'n' everything.

Judge Stefan R. Underhill (D. Conn., sitting in Bridgeport) is seeking applicants for a two-year clerkship (2007-09). Applications will be accepted through December 10, 2006, and interviews will be scheduled December 1-15, 2006. Please apply online.

Judge Underhill is supposed to be a terrific judge and this clerkship offers a great opportunity for those who did not secure a clerkship in the fall. Anyone seriously interested in applying should feel free to contact me and/or Judge Underhill's current clerk, Susan Ylitalo (CLS '04).

Bad Judgment at White & Case and ATL

I'm disappointed to see that someone forwarded this to David Lat, and that he chose to publish it. The July 2006 New York Bar Exam pass list is not yet public, and while I might expect someone online to pick through the list when it is, pointing out people who were known to have taken the bar yet not passed, to publicize a single person's failure and her reaction to it is a particular kind of bad taste that I hadn't expected of either White & Case employees or of Above the Law.

I'm thankful to be sufficiently uninteresting that if I fail the bar, no one will care enough to attribute it to "partying." The possibility that someone he views as a celebrity might have been doing something worthwhile with her time -- say tutoring Harlem children, or assisting with her class gift campaign -- either isn't something Lat can imagine, or just isn't enough fun.

(I know that it may be a bad choice on my part to link ATL's post, but if I just say that Lat has done something tasteless without specifying what it was, readers may assume that I'm referring to anyone of a numberofposts that I actually found acceptable.)

When Mr. Wu’s application for a Supreme Court clerkship was being reviewed, Mr. Lessig recalled being asked by Justice Breyer, “Both you and Dick Posner seem to think he’s really outstanding, but he’s not on the Harvard Law Review.”
He got the job anyway. As hard as it is to imagine, this sentiment from the justice seems to encapsulate the feelings of other academics about Mr. Wu, some of whom can’t help but envy the way things seem to have fallen into place so easily for him.
“There’s sort of a traditional path in law school,” he said. “… You can imagine a house that everyone’s trying to get into, which is something like a Supreme Court clerkship. I always thought there was a massive line headed at the front door, but if you just took a little side route …. It seemed to me everyone was trying to beat down the same door. You could do a little bit of different thinking, and jump in through an open window.”

And just for fun: "In a phone conversation, the law-student skit came up, and he talked about it and the 'I ♥ Wu' shorts, sheepishly.
'I have to get a pair of those,' he said."

But even Wu's greatest fans have to disagree. "All things being equal, Wu will never have anything on George Clooney. Clooney is a stud." "I'm sorry, but George Clooney totally deserves that title. Tim Wu can't compete with Batman."

November 10, 2006

After FAIR

Eugene Volokh has aroused an unusual level of opposition among his commenters by blithely declaring, "The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective." In short, Volokh thinks that people who apply their anti-discrimination policies to the military lack perspective, because it's much more important that the military be able to recruit on campus or advertise in the Oregon State Bar Journal than that law schools or the Oregon State Bar have serious anti-discrimination policies. Or to approximate his argument more closely, supporting the military is so important that we cannot allow our solidarity with homosexuals who have been discriminated against to impede that support in any way, shape or form.

The "war on terror," particularly as currently prosecuted, doesn't strike me as a necessary war* obligating all citizens' assistance even if they have objections to the military's procedures, but I would revoke my personal policy against joining a discriminatory military if I felt the United States was at risk of ceasing to exist, as was a threat in the War of 1812, Civil War and World War II. For example, African Americans should have fought for the Union in the Civil War and for the U.S. in WWII despite the segregated military. However, we all have an obligation to help the people in the military, which is why I'm trying to organize a pro bono project for law students to assist soldiers and their families. (Though it may not get off the ground if I can't find a need that my group is likely to be able to help meet.)

Volokh doesn't take seriously that there is a general policy of boycotting advertisement by anti-homosexual advertisers; he seems to assume an anti-military bias that does exist among some boycotters, but not all. Boycotters without bias don't want the military to be unable to get recruits; they simply refuse to make an exception to the general policy to help them to do so. I support the law schools' applying their general policy of nondiscrimination to military as well as non-military recruiters, but I also pushed my Student Senate to assist students who were interested in the JAG program to get off-campus interviews instead.

Those of us with anti-discrimination policies should not relax them except in times of need, but we also can find alternatives to destroying our own policies that will assist a deserving, albeit discriminatory, employer. For example, the Oregon State Bar Journal could refuse to take the Guard's advertising, as it refuses the advertising of all other anti-homosexual employers, but could make an effort to publish writing about the work military lawyers do. Even if the Wall Street Journal banned advertising from the military, the article they ran about Phil Carter's work in Iraq was a much better recruiting tool than the lame ads the military puts out -- getting unjustly imprisoned Iraqis out of jail, without running roughshod over local authority, appealed to the little pro bono lawyer in my heart far more than the notion of boot camp did. Ultimately I agree with Volokh that "those institutions that defend our lives deserve slightly more accommodation." Where he's wrong is in thinking that "accommodation" must equal surrender of the underlying principle.

* Perhaps the most annoying part of Volokh's post and comments is his repeated nudge that "the people the U.S. military is fighting now would do much worse things to gay people than merely refusing to let them be soldiers." See, gay people, you have no right to think the military is bad, because they are saving you from being stoned by the Taliban! I confess that I see nothing terrorists could do as being worse for gay people than for everyone else -- to my knowledge, Islamic terrorists are far more likely to bomb government or Jewish buildings than Pride parades -- but Prof. Volokh may see the eventual takeover of the United States by Muslim theocracy as more plausible than I do.

November 08, 2006

Disillusionment of a law student

Anyone who has read anything that I have written in the last year or so would be liable to say that I'm a card-carrying pessimist. That is why it was so painful for me this week when I read a case that completely disillusioned me of any notion that we are a nation of laws. Instead, we are a nation of policy choices. Now, I was always aware of the political nature of the Judicial Branch of government, but after reading UNITED STATES v. MENDOZA, I now know that the federal government is not bound by any notion "law". UNITED STATES v. MENDOZA, 464 U.S. 154 (1984). Why? because it is more important to allow policy considerations to be made by the government than it is to bind the government to the law:

Under the doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. However, the doctrine of nonmutual offensive collateral estoppel, under which a nonparty to a prior lawsuit may make "offensive" use of collateral estoppel against a party to the prior suit, is limited to private litigants and does not apply against the Government. Id. at 158-159.

In addition to those institutional concerns traditionally considered by the Solicitor General, the panoply of important public issues raised in governmental litigation may quite properly lead successive administrations of the Executive Branch to take differing positions with respect to the resolution of a particular issue. While the Executive Branch must of course defer to the Judicial Branch for final resolution of questions of constitutional law, the former nonetheless controls the progress of Government litigation through the federal courts. It would be idle to pretend that the conduct of Government litigation in all its myriad features, from the decision to file a complaint in the United States district court to the decision to petition for certiorari to review a judgment of the court of appeals, is a wholly mechanical procedure which involves no policy choices whatever. Id. 159-162.

Therefore my fellow travelers in law, if the federal government wins an action, the opinion becomes law to you and me, but not to the government. If they lose the action.... it becomes law for nobody but that one particular party.

November 07, 2006

Post About Texas

1) The Houston Chronicle reports, "An appeals court panel has slapped down an Enron shareholder's challenge of a judge's decision to erase former Enron Chairman Ken Lay's criminal convictions." I'm surprised that the three 5th Circuit judges didn't dismiss Russell P. Butler's suit just for lack of standing, and I bet that in the unlikely event SCOTUS takes it, they'll choose the narrower ground. I would think that the SEC's civil case against Lay and Skilling would be a better avenue of stockholder redress than any criminal convictions. And if it's all about the Benjamins, don't forget the billions in lawsuits against banks that colluded in Enron's deceptions. Meanwhile, the post-Chapter 11 Enron has collected some money from the life insurance policy taken on Lay before the company collapsed.

Also, I am as amused as the next person when discrimination actually seems to redound to the victim's benefit, but I don't understand why the same-sex partner of Enron’s global finance unit director isn't being prosecuted (via ChaliceChick):

Among the information emerging from this and subsequent trials of Enron figures was that Kopper enlisted Dodson to serve as a joint owner in one or more sham companies that operated in partnership with Enron, The Houston Chronicle reported. In one such company, called Chewco Investments, Kopper and Dodson netted more than $7 million after the company was sold back to Enron, Kopper testified.

At the moment, Dodson is "in the same 'third party' category of individuals or entities, including churches and hospitals, that received tainted Enron money that the government won’t attempt to recoup." I assume the churches and hospitals (as well as every major performing arts center in Houston) didn't participate in any of the scams that contributed to Enron's collapse, whereas Dodson apparently did. Though he and Kopper couldn't get married, and the $9 million Dodson holds therefore isn't community property, for Dodson to sign on as joint partner in a sham company strikes me as at least as bad as signing off on fraudulent tax returns.

2) There's no love lost between Governor Rick Perry and me, and because I never received my absentee ballot and thus was unable to vote for Democratic challenger Chris Bell, I made an exception to my usual rule against giving money to political candidates (I'm shifting toward the ACLU's position that current campaign finance restrictions are both unconstitutional and useless, and that we should just switch to public financing) and donated to Bell's campaign. Nonetheless, in a season of crappy and sometimes creepy political advertisements, particularly by Republicans, “Mr. Way Too Liberal For Texas Guy” is fabulous. It spoofs not merely the general Budweiser Real Men of Genius ads, but specifically parodies the "Mr. Way Too Proud of Texas Guy" one. Sure, it hits all the usual conservative cliches about Taxachusetts, the French and liberalism, but just reading the text made me crack up -- it must have been fantastically effective as a radio commercial, particularly since the audio doesn't have the translation included in the text on Perry's site.

Announcer: And you voted to let the United Nations oversee elections in America because no one stands up for democracy like the French.
Singer: Je m’appelle Christophe Bell! (My name is Chris Bell)

Really, governor, I know you've made a mess of school funding, but most of us passed the part of the TAAS/ TAKS that tested context clues.

November 06, 2006

He Beat Me to the Punch

Thanks to How Appealing, I now know that Matthew Madden of UVa Law has this note about the unconstitutionality of O'Connor's resignation. I made this point on De Novo on two occasions (here and here) and Prof. Lindgren of the VC also opined on the matter. I just wish my Con Law professor had approved it as a paper topic. Oh well.

If You Can't Tell Your JAG You Were Tortured

If this is actually coming from the interrogators and not the administration, then I suspect the secrets they're concerned about have little to do with torture and a lot more to do with deception.
If they've got these guys isolated for months or years, they can tell them an amazing story: The steady destruction of the resistance movement in Iraq, the capture of Osama bin Laden and his return to New York to stand trial, the Israeli nuclear attack on Iran...look, you lost and we already know everything, just make it official so we can finish our paperwork and let you go...
That sort of thing won't work if they know it's coming.

Or rather, it makes sense as long as we're talking about someone like Gitanjali S. Gutierrez, 'cause we all know that the Center for Constitutional Rights is there to Defeat America. On the other hand, if detainees can't pick their attorneys from potential sympathizers, but instead are limited to folks vetted by the Office of the Chief Defense Counsel from the Office of Military Commissions, I don't understand why we're afraid information will leak from the detainee through the attorney to our enemies. The government's already permitted to breach attorney-client confidentiality if it will assist with prison administration (2006 WL 2699305). I understand that the executive's privilege knee jerks any time there's a chance people could find out what the administration's been up to, but hopefully the courts won't fall for it again.

November 05, 2006

Law, Morality and Private Policy

Mike Jones, the prostitute who outed the Rev. Ted Haggard for methamphetamine use and paid homosexual encounters, says that he did so because "it made me angry that here's someone preaching about gay marriage and going behind the scenes having gay sex." Yet this isn't even hypocrisy; Haggard was not having a secret same-sex union, merely same-sex sex. When I remarked upon this, it was immediately seen as a weak and technical point, because Haggard of course objects to same-sex sex as well (though I don't know if he lobbies for it to be re-criminalized, in contrast to his lobbying for same-sex marriage to remain legally unrecognized). But some conservatives see no impropriety in publicly condemning an act that one privately enjoys, nor in keeping such acts illegal or socially unacceptable. Florence King, who at least had the virtue* of being quite honest in her books about her cheerfully swinging both ways with multiple partners whom she never married, stopped writing for Cosmopolitan because

I was brooding over the mass canoodling I was helping to promote. A few hussies add spice to society's soup, provided they are rich in their own right, like George Sand, or well kept, like Lillie Langtry, but too many hussies bring the house down. Female chastity (or at least the pretense of it) keeps us civilized, but Cosmo had aroused in men the ancient dread of the insatiable female. I decided rapists were saying, in effect: "Here's some sex you won't enjoy."

King herself was neither rich nor kept -- simply a moderately popular author -- but she enjoyed being a hussy during her youth and set up rules against it only in her senior years. She also managed to write in opposition to same-sex marriage despite her most serious relationship having been with a woman who was killed in a car accident while they were in college. Yet none of this need be seen as irrational, illogical or indicative of lacking inner peace.

Indeed, if one thinks that an activity is improved by the spice of sinfulness, and that one individually can get away with the activity even if others cannot, then maintaining its sinfulness in the eyes of others makes the activity all the more fun for oneself. Certainly there may be some unfortunate slobs like Lawrence and Garner -- and now Haggard himself -- who will be arrested or outed, but people who deliberately and repeatedly engage in activities they sincerely think are wrong tend to believe themselves the exceptional beings who are too clever or lucky to fall prey to negative consequences. King put it bluntly: "A passion for social change was not part of my rebelliousness; I was content to let the world stay exactly as it was, provided I could have special privileges. I wanted to be a token. I saw the situation in individual terms, and I was the individual who mattered." My concern is about the negative effects such people create for others. For example, if one is happy to support the prosecution of pornographers while secretly buying their wares, that is a hypocrisy dangerous to the pornographers. At least if one were consistently either prudish or perverted, the pornographers would know where they stood: either they wouldn't have a market for the product, or they wouldn't get prosecuted for purveying it.

* King's more important virtue is being an excellent writer -- she came out of retirement briefly to assess Ann Coulter.

November 04, 2006

Christmas Gift for O'Connor

If you're wondering what to get the retired Supreme Court justice in your life, consider the VeggieCreche.
The fuss coming solely from deists about restoring the Pledge of Allegiance to its pre-Cold War condition strongly indicated that, contrary to Justice O'Connor's claim, "under God" did not have merely ceremonial place in it. However, I feel safe in saying that any municipality that puts a VeggieTales nativity scene by City Hall is not creating an impermissible connection between church and state. With lights, sounds and "a gourdgeous cow costume," this truly is the point at which Christianity ceases to be a religion and becomes cultural artifact: campy, brightly colored and plastic.

November 03, 2006

Pie-Eating Pro Flowers Settlement

Not being a Netflix subscriber, I was merely an onlooker to the excitement surrounding the class action settlement (now amended). Whining about lawyer's fees aside, the Netflix settlement award of a free month's subscription to people who no longer are Netflix subscribers, and a free month's upgrade that increases the number of DVDs current subscribers can have out, at least is somewhat congruent with the complaint that Netflix didn't really let people see an unlimited number of movies. Moreover, someone who is a subscriber to Netflix presumably is a repeat-user; the number of people who buy a month's subscription and then quit must be relatively small compared to the number of multi-month subscribers.

The ProFlowers settlement notice e-mailed to me (you think Netflix is e-commerce? These people aren't even sure where I live!) has neither of those virtues. I used ProFlowers once because they were offering a discount for first time users, and I don't understand how a $10 discount on a site with no products sold for less than $24.99 is a useful recompense for ProFlowers's alleged wrongdoing. Interestingly, the class action suit commenced the same day ProFlowers competitor FTD filed its response to the ProFlowers answer and counterclaim in a suit FTD filed August 23, 2005, and the class action suit essentially copies FTD's claims. FTD and ProFlowers settled their lawsuit in August, with neither admitting wrongdoing nor paying the other, though ProFlowers did agree to alter its advertising, which concession presumably is standard in false advertising claims. I wonder how much Theodore G. Phelps and his attorneys are getting?

The e-mail follows below the fold:

Dear PG:

You are receiving this notice because you were a customer of ProFlowers between October 4, 2001, and October 26, 2006. Under a proposed class action settlement, you are entitled to compensation. Upon final court approval of the proposed settlement, you will qualify for $10 off any single purchase at ProFlowers between January 1, 2007, and June 30, 2007, ("Redemption Period"). Simply visit www.ProFlowers.com during the Redemption Period, choose any bouquet, gift basket or other product, and then enter the following "Gift Code" at time of check out: XXX.
The compensation is only valid for internet orders placed on www.ProFlowers.com and is limited to one $10 Gift Code per class member. The Gift Code cannot be used for phone orders, and cannot be combined with other discounts or promotions, and is not valid for redemption or delivery of products during the 7 days prior to major floral holidays (Valentine's Day, Mother's Day, Easter, Christmas and Thanksgiving).

A class action lawsuit entitled Theodore Phelps v. Provide Commerce Inc., dba ProFlowers was filed in Los Angeles Superior Court (case number BC340863) on October 4, 2005. The lawsuit alleges that ProFlowers made false and/or misleading statements concerning the shipment of flowers to its customers. ProFlowers denies these claims, and asserts that flowers ordered on www.ProFlowers.com are purchased directly from growers in the U.S. or internationally and expeditiously delivered to the recipient requested by each customer. The parties have reached a settlement that they believe is in the best interests of the company and its customers.

A final hearing will be held before Judge Peter D. Lichtman of the Los Angeles Superior Court, on December 20, 2006, at 10:30 a.m., to determine whether the proposed Settlement is fair, reasonable and adequate, and should be finally approved. The hearing will take place at the Los Angeles County Superior Court, Department 322, located at Los Angeles Superior Court, 600 South Common Wealth Ave., Los Angeles, California 90005. You are not required to attend the hearing in order to participate in the settlement.

IF YOU WISH TO BE PART OF THIS CASE and/or receive the benefits of the settlement, you do not need to do anything. Along with this notice, you have been provided with a “Gift Code”. Upon final court approval of the settlement, each Class Member, who does not timely opt-out of the settlement, shall automatically be entitled to use the “Gift Code” and shall receive $10 off one purchase at www.ProFlowers.com. In addition, the settlement provides that Proflowers shall make certain changes to its advertising practices in the future. The full text of the Notice of Proposed Class Settlement (the “Notice”), which explains the settlement terms and restrictions, appears at www.ProFlowers.com/settlement.

IF YOU DO NOT WISH TO BE PART OF THIS CASE, you may exclude yourself. To do so, you must mail a request to “OPT OUT,” postmarked no later than December 5, 2006. The request must state: "I wish to be excluded from the ProFlowers Class Action Settlement." Mail your request to be excluded to Plaintiff's counsel, Phillip R. Poliner, Westrup Klick, LLP, 444 West Ocean Boulevard, Suite 1614, Long Beach , California 90802. If you properly and timely exclude yourself from the settlement you will NOT be entitled to use the $10 off Gift Code. In addition, you have the right to object to the settlement. The procedures for objecting are set forth in the Notice which appears at www.ProFlowers.com/settlement.

Still Haven't Found What You're Looking For

Though his standards are high -- top quarter of the class, law review -- SDTX Magistrate Judge Brian L. Owsley nonetheless may be your last minute ticket to a federal clerkship.

Fifth Circuit, Southern District of Texas
Corpus Christi, TX
*Federal Law Clerk
Overview/Qualifications: The Honorable Brian L. Owsley from the Fifth Circuit, Southern District of Texas, seeks a federal law clerk to work from August 15, 2007 to August 15, 2008. Applicants should be in the top quarter of their classes and would preferably have law review experience.
Duties: Unspecified
To apply: Submit a cover letter, resume, law school transcript, two letters of recommendation, and a writing sample to:
United States District Court
United States Courthouse, 3rd Floor
1133 North Shoreline Boulevard
Corpus Christi, TX 78401
The contact person for the position is Millie Jarnagin.
Deadline: Unspecified
Salary: Unspecified

At least, I assume this is a regular federal clerkship that somehow went unfilled during the normal clerkship season; Judge Owsley isn't mentioned in the Texas District section of the Clerkship Notification blog. If I were a) qualified and b) graduating in May, I would apply for this position -- Owsley has an excellent resume and is a recent appointee, after having been previously employed by the DOJ, Human Rights Watch and the Southern Poverty Law Center.

YM Deduction MV

1) Is there any correlation between the deduction the IRS permits and the rates at which law firms reimburse students traveling for interviews? In 2006 the IRS allowed business travel to be deducted from individuals' income at 44.5 cents per mile, yet the reimbursement rate among firms ranged from 48.5 at McDermott, Will & Emery to MoFo's 43.5 and Womble Carlyle's 40.5. It is of course better to be reimbursed than to take the deduction, particularly when one is a law student whose main income will be the following summer's associateship, and I'm guessing that law firms simply deduct all expenses related to recruiting, so the incentive still is to keep the rates low because again, it is better to have the money than the deduction. Nonetheless, this seems like a pointless variability -- surely NALP could set an amount each year and put that on its forms.

2) If gas prices have dropped this year and cars are becoming increasingly fuel-efficient without big jumps in purchase price, why keep increasing the business mileage rate beyond what inflation adjustment would require? It's gone from 40.5 cents per mile in pre-Katrina 2005, to 44.5 in 2006, to 48.5 for 2007. Is there a coming gas price spike that the IRS knows about?

3) Why hasn't Congress increased the rate for people deducting travel costs related to charitable service? Multiple pieces of tax legislation have been passed in the last several years, yet even as the IRS-determined medical and moving rate will have doubled in 2007 to 20 cents, from its 2000 rate of 10 cents, the deduction for charity travel is frozen at its Taxpayer Relief Act of 1997 rate of 14 cents per mile. The only legislative effort in the intervening decade was a brief increase to 32 cents per mile for Katrina-related charity work. If tax deductions generally are given to provide incentives for behavior, apparently charity travel is the least worthwhile kind.